UNITED STATES DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENTWASHINGTON, D.C. 20240www.blm.gov

September 30, 2008

In Reply Refer To:

1740/1790 (310/230) P

EMS TRANSMISSION 10/03/2008

Instruction Memorandum No. 2008-204

Expires: 09/30/2009

To: All State Directors

From: Director

Subject: Offsite Mitigation

Program Areas: All Resource Programs

Purpose: This Instruction Memorandum (IM) outlines policy for the use of offsite mitigation for authorizations issued by the Bureau of Land Management (BLM). This IM replaces IM WO-2005-069 Interim Offsite Compensatory Mitigation for Oil, Gas, Geothermal and Energy Rights-of-Way Authorizations (February 1, 2005).

Policy/Action: Offsite mitigation consists of compensating for resource impacts by replacing or providing substitute resources or habitat at a different location than the project area. Offsite mitigation is supplemental to onsite mitigation and is used to enhance the BLM’s ability to fulfill its mission of providing multiple uses on the public lands, while ensuring its resource management objectives are met. In making decisions that are within its discretion (taking into account statutes, regulations, and contractual/property rights of the requester), the BLM has an obligation to approve only land use authorizations that are consistent with its mission and objectives. This may mean that the BLM may be unable to permit certain land use authorizations without appropriate mitigation measures. Onsite mitigation alone may not always be possible or sufficient, though often resources are present offsite that can offer suitable compensation for remaining onsite impacts. Consequently, offsite mitigation may be an effective management tool to ensure appropriate land use authorizations.

In order to ensure a sufficient relationship between offsite mitigation and the BLM’s mission to manage the public lands, offsite mitigation may be used only when the BLM can demonstrate that the proposed mitigation is reasonably necessary to accomplish an authorized BLM purpose.

When proposed offsite mitigation is geographically distant from the project area, and particularly when it occurs on non-Federal land, the connection to resources for which the BLM is responsible should be clear.

Offsite mitigation may be offered voluntarily by a project proponent, incorporated into the project proposal, and approved by the BLM as a condition of the permit authorization. In certain other cases, the BLM may find it necessary to advise the applicant that the project proposal cannot be approved without additional onsite modification or additional mitigation, including offsite mitigation. There may be a need for offsite mitigation when:

Impacts of the proposal cannot be mitigated to an acceptable level onsite; and

It is expected that the proposed land use authorization as submitted would not be in compliance with law or regulations or consistent with land use plan decisions or other important resource objectives.

Early in the authorization/approval process, the BLM and the applicant should discuss mitigation options. Proposals for offsite mitigation should be evaluated through the National Environmental Policy Act (NEPA) process. Field offices will have State Director approval prior to analyzing an alternative that includes offsite mitigation.

The BLM’s policy is to mitigate impacts to an acceptable level onsite whenever possible through avoidance, minimization, remediation, or reduction of impacts over time. Offsite mitigation is not to become the default resource mitigation practice for projects permitted by the BLM. Offsite mitigation is a supplemental mitigation practice identified on a case-by-case basis and must be based on the need to address important resource issues that cannot be acceptably mitigated onsite. It is not the intent of this policy to solicit or require applicant-committed mitigation that exceeds the impact of the applicant’s proposed project. Furthermore, not all adverse impacts can or must be fully mitigated either onsite or offsite. A certain level of adverse impact may be acceptable and should be identified during the environmental review and acknowledged in the decision document. Under the provisions of Section 302 of the Federal Land Policy and Management Act (FLPMA), offsite mitigation cannot be substituted where the onsite use, if authorized, would cause unnecessary or undue degradation.

Offsite mitigation may include, as appropriate:

oIn-kind: Replacement or substitution of resources that are of the same type and kind as those being impacted.

Example: For every acre of new, long-term surface disturbance in important sage-grouse nesting/early brood-rearing habitat in Area (A), (X) acres of unsuitable habitat in Area (B) is reclaimed, treated, or planted to create new or suitable nesting/early brood-rearing sage-grouse habitat.

oOut-of-kind: Replacement or substitute resources that, while related, are of equal or greater overall value to public lands.

Example: For every acre of new, long-term surface disturbance in important sage-grouse nesting/early brood-rearing habitat in Area (A), the project proponent agrees to bury (Y) miles of existing power lines and remove the power poles used as hunting perches by raptors in Area (B).

oIn-lieu-fee: Payment of funds to the BLM or a natural resource management agency, foundation, or other appropriate organization for performance of mitigation that addresses impacts of a project.

Example: The applicant may make payment to the BLM or a conservation group based on the amount of acres that will be disturbed in exchange for commitment from the recipient to apply the funds toward local sage-grouse core habitat protection/restoration projects.

Depending on the circumstances, “in-kind” mitigation is generally preferred to “out-of-kind.”

Offsite mitigation may be performed on Federal lands managed by the BLM or another Federal agency. Offsite mitigation may also occur on non-Federal lands with the agreement of the surface owner or other land management agency when it provides an alternative site for conserving BLM-managed resources that have been temporarily impacted while activities are occurring on BLM-managed lands. The BLM must obtain written assurances from the agency, surface owner, and/or permit holder that offsite mitigation conducted on non-Federal lands will receive adequate management and will provide adequate protection during the expected lifetime of the development project on the BLM-managed lands.

This policy addresses offsite mitigation related to permit authorizations and is not intended to limit partnerships formed through the Healthy Lands Initiative. The terms of existing offsite mitigation agreements or permits that are in compliance with Federal statutes and regulations are not affected by this policy. This policy does not replace or affect offsite mitigation requirements that may result from formal consultation under statute or regulation, such as Section 7 of the Endangered Species Act, the National Historic Preservation Act, or wetlands mitigation requirements available to other agencies under the Clean Water Act.

Timeframe: This IM is effective upon issuance.

Budget Impact: None.

Background: The BLM issued an Interim Offsite Mitigation policy, Washington Office Instruction Memorandum 2005-069 (February 1, 2005). The intent stated in the interim policy was, “The policy will be reviewed and updated prior to the expiration of this IM.” The initial scope of the previous policy was limited to oil, gas, geothermal, and energy rights-of-way programs while excluding all other resource programs.

This updated policy is being issued to broaden the scope of offsite mitigation. The new policy will help to ensure that practical mitigation measures are applied to meet public land multiple-use and sustained-yield management principles while reducing short-term and long-term impairment to the environmental quality of the public lands.

Manual/Handbook Sections Affected: None.

Coordination: Preparation of this IM was coordinated with the Field Committee, Executive Leadership Team, Healthy Lands Initiative Team, Assistant Director for Minerals and Realty Management, Assistant Director for Renewable Resources and Planning, and the Office of the Solicitor.